Rose v. Slough

• Decision Date: 17 June 1918
• Docket Number: No. 58.,58.
• Citation: 104 A. 194
• Parties: ROSE et al. v. SLOUGH.
• Court: New Jersey Supreme Court

104 A. 194

ROSE et al.

v. SLOUGH.

No. 58.

Court of Errors and Appeals of New Jersey.

June 17, 1918.

Appeal from Supreme Court.

Action by Anna M. Rose and Theodore F. Rose, her husband, against Mary Cooper Slough. From a judgment for plaintiffs, defendant appeals. Reversed.

Bleakly & Stockwell, of Camden, for appellant. Wescott & Weaver, of Camden, for appellees.

KALISCH, J. The respondents, husband and wife and plaintiffs below, were permitted to recover a judgment against the appellant, defendant below, upon the following state of facts: The defendant was the owner of certain premises abutting a public highway in the township of Pesauken. A sidewalk paved with patent composition paving blocks extended along the front of the premises. On this sidewalk stood and grew a shade tree, the roots of which, from natural growth, spread under the paving blocks and caused them to bulge up several inches, thereby rendering the sidewalk uneven and broken in several places. The female plaintiff, while walking along on this sidewalk, stumbled and fell, as a result of its uneven and broken condition, and sustained injury. These facts are the gravamen of the amended complaint filed in the cause, with the additional averment that the defendant maintained the "shade tree for use, pleasure, and comfort, and for the beautification of her property."

With the exception of this averment, the material facts of the present case are not dissimilar to those set forth in Rupp v. Burgess, 70 N. J. Law, 7, 56 Atl. 166. In the case cited there was a demurrer to the first count of the declaration, which averred "that the defendant was the owner of a certain lot fronting on Newton street, in the city of Newark, and while owning and occupying this lot he wrongfully and knowingly permitted the flagstones with which the sidewalk in front of his property was covered to become and remain in a broken, insecure, and dilapidated condition," and that by reason thereof the female plaintiff, who was walking along upon that portion of the sidewalk, stumbled and fell, etc. Mr. Chief Justice Gummere, speaking for the Supreme Court (70 N. J. Law, on page 9, 56 Atl. on page 166), said:

"The first count, plainly, discloses no cause of action. It is based upon the assumption that the owner and occupant of premises abutting upon a public street is under a legal duty to keep in repair the sidewalk in front of his property. But no such obligation rests upon him, unless by virtue of the requirements of a city or municipal ordinance (Dill. Mun. Corp. par. 1012; Weller v. McCormick, 18 Vroom, 397 [1 Atl. 516, 54 Am. Rep. 175]), and the declaration fails to allege the existence of any such requirement. And even when the duty of repairing sidewalks is imposed upon the abutting owner by statute or ordinance, the failure to perform that duty does not render the owner responsible to individuals for injuries received by them, resulting from defects in the sidewalk due to want of repair. The only liability which rests upon the property owner for the nonperformance of such a duty is the penalty provided by the statute or ordinance. Fielders v. New Jersey Street Railway Co., 39 Vroom, 343, 352 [53 Atl. 404, 54 Atl. 822, 59 L. R. A. 455, 90 Am. St. Rep. 552], and cases cited."

Counsel of respondents argue that the doctrine enunciated in Weller v. McCormick supports the theory upon which the plaintiffs were permitted to recover in the present case. It is true that the case referred to, in many of its features, is like the present. It is, obviously, materially unlike in one important respect, and that is that the injury sustained by the plaintiff was the result of a decayed branch of a tree, which stood in front of the defendants' premises, falling upon the plaintiff while passing along the sidewalk, whereas in the present case the injury to Mrs. Rose resulted from a fall on a sidewalk, by reason of its being out of repair. The bearing of this difference in the facts upon the legal aspects of the present case will be considered later.

In Weller v. McCormick, Dixon, J., in a careful and well-reasoned opinion, points out with characteristic perspicuity the essential facts necessary to be established by the plaintiffs, in order to cast a liability upon the landowner to respond in damages for the injury sustained. In 47 N. J. Law, on page 398, 1 Atl. on page 517, 54 Am. Rep. 175, the learned judge said:

"It must be conceded that ordinarily, when a person, for his private ends, places or maintains, in or near a highway, anything which, if neglected, will render the way unsafe for travel, he is bound to exercise due care to prevent its becoming dangerous. If, therefore, from the fact that the tree in question stood on a portion of George street owned by the defendant, it is to be inferred that the tree was placed or maintained there by him for his private benefit, it would follow that the alleged duty existed. But we think that in the present case this fact is not sufficient to warrant such an inference against the defendant."

It is to be observed that this alleged duty of the abutting owner is qualified by a condition, that the tree was placed or maintained in the public highway for his benefit, and that the mere fact of the presence of the tree on a portion of the highway in front of the owner's premises gave rise to no presumption that it was there for the private benefit of the defendant, and hence created no legal duty regarding it. The learned justice then proceeds (47 N. J. Eq. on page 398, 1 Atl. on page 517) to state his reason, as follows:

"Shade trees in the streets of a city are of public as well as private utility. They protect and ornament the way for public use, as they also do the adjoining property for...